California Criminal Trial Manual

General Principles

• Credibility of witness. General rule – trier of fact may consider any matter that has a tendency in reason to prove or disprove the truthfulness of the W’s testimony. (EC 780.)
  • Can be attacked or supported by any party. (EC 785.)
• Impeachment Where Declarant Does Not Testify. “Under [Evidence Code] section 1202, when a hearsay statement by a declarant is admitted into evidence by the prosecution, an inconsistent hearsay statement by the same person offered by the defense is admissible to attack the declarant’s credibility.” (People v. Corella (2004) 122 Cal.App.4th 461, 470.)
  • Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. (EC 1202.) Following elements must be met:
    • (1) Statement is inconsistent with statement of declarant received in evidence
    • (2) Statement received in evidence was admitted as hearsay
    • (3) Inconsistent statement is admitted for the purpose of attacking the credibility of declarant.
  • Declarant’s Unavailability is Irrelevant. EC 1202 does not make a hearsay declarant’s unavailability a condition for introduction of the declarant’s inconsistent statements offered for impeachment. (People v. Baldwin (2010) 189 Cal.App.4th 991.)
• EC 352 provides discretion “to control presentation of proposed impeachment evidence to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (People v. Mills (2010) 48 Cal.4th 158, 195.)
• Bias
  • Evidence DA office previously prosecuted witness’s husband, leading to his imprisonment at the time of trial, was admissible to show W biased against prosecution. (People v. Williams (2008) 43 Cal.4th 584, 634.)
  • Financial interest in the proceedings. (Calvert v. State Bar (1991) 54 Cal.3d 765, 777.)

Prior Felony Conviction

• Prior felony conviction is admissible for impeachment if (1) involves moral turpitude and (2) survives EC 352. (People v. Castro (1985) 38 Cal.3d 301, 316.)
• Questioning re: prior felony conviction. Questioning is limited to the name or nature of the crime and the date and place of conviction. (People v. Allen (1986) 42 Cal.3d 1222, 1268.)
• Juvenile Adjudication. Criminal conduct involving moral turpitude that was a subject of a juvenile adjudication is admissible. (People v. Lee (1994) 28 Cal.App.4th 1724, 1740; People v. Bedolla (2018) 28 Cal.App.5th 535, 550.)
• Facts underlying felony conviction. Right to impeach through use of a felony conviction does not extend to the facts underlying the offense. (People v. Casares (2016) 62 Cal.4th 808, 830.)
  • Exception: Can go into the details of the crime if the witness “has first attempted to mislead the jury or minimize the facts of the prior offense.” (People v. Ardoin (2011) 196 Cal.App.4th 102, 119-121, overruled in part by People v. Dalton (2019) 7 Cal.5th 166.)

Misdemeanor Misconduct

• Prior misdemeanor conduct is admissible for impeachment if (1) involves moral turpitude that has some logical bearing on the veracity of a witness and (2) survives EC 352. (People v. Smith (2007) 40 Cal.4th 483, 512.)
• Moral Turpitude Crimes are offenses “in which dishonesty is an element.” (People v. Chavez (2000) 84 Cal.App.4th 25, 28.)
  • Theft Crimes necessarily involve an element of deceit. (People v. Gurule (2000) 28 Cal.4th 557, 608.)
    • Thus, involves moral turp. (People v. Gray (2007) 158 Cal.App.4th 635, 641.)
  • PC 148.9(a) involves dishonesty, and therefore moral turpitude. (People v. Maestas (2005) 132 Cal.App.4th 1552, 1556, fn. 4.)
• Misdemeanor Conviction is admissible to prove the conduct underlying. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
  • EC 452.5(b): an official record of conviction certified in accordance with EC 1530(a) is admissible under EC 1280 to prove the commission … of a criminal offense.
  • Juvenile adjudication is not a conviction. (People v. Lee (1994) 28 Cal.App.4th 1724, 1738-1740.)
• Non-Criminal Misconduct. A court may allow impeachment with misconduct that does not constitute a criminal offense. (People v. Contreras (2013) 58 Cal.4th 123, 157 fn. 24.)
  • D feigning suicide attempts & false statements to gain admission to psychiatric unit of a county medical center. (People v. Clark (2011) 52 Cal.4th 856, 930-933.)
  • W lied to officials about gang membership to obtain transfer from one prison to another. (People v. Ayala (2000) 23 Cal.4th 225, 273.)
  • To extent misconduct is not criminal in nature, it carries less weight in proving lax moral character and dishonesty than does either an act or conviction involving a felony. (People v. Contreras (2013) 58 Cal.4th 123, 157, fn. 24.)

EC 352 in Impeachment Context: Judicial Balancing

• Following factors apply “as guiding rather than restraining the discretion of trial courts in applying § 352 to prior convictions offered for impeachment.” (People v. Collins (1986) 42 Cal.3d 378, 392.)
• (a) Remoteness of crime
  • Courts may look to (1) length of time elapsed since the conviction; (2) the length of the sentence served (3) the age of the witness at the time of the conviction; and (4) the witness’s conduct subsequent to the conviction. (People v. Burns (1987) 189 Cal.App.3d 734, 738-739.)
  • Not too remote
    • 7 & 9 years old. (People v. Morris (1991) 53 Cal.3d 152, 195, disapproved of on other grounds, People v. Standsbury (1995) 9 Ca.4th 824.)
    • 12-year-old prior conviction. (People v. DeCosse (1986) 183 Cal.App.3d 404, 411-412.)
    • 17-year-old prior conviction, because D had been incarcerated for all but two of the years between the convictions and the trial. (People v. Carpenter (1999) 21 Cal.4th 1016, 1055-1056.)
• (b) Identical crime
  • If the prior conviction is for a crime identical to the one charged, the court may, but is no longer compelled to, exclude it, particularly if it is the witness’s only impeachable conviction. (People v. Clark (2011) 52 Cal.4th 856, 932.)
• (c) Refusal to testify. If witness is D, court must be concerned if the fear of impeachment leads to a refusal to testify.
• (d) Multiple impeachable convictions
  • A series of relevant crimes is more probative of credibility than a single lapse. (People v. Hinton (2006) 37 Cal.4th 839, 888.)
  • Court considers whether denying admission of priors would give the witness a “false aura of veracity.” (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.)
• (e) Impeaching W other than D. Two most important factors to consider are “whether the conviction (1) reflects on honesty and (2) is near in time.” (People v. Clair (1992) 2 Cal.4th 629.)